Free-Speech Fundamentalism

DOES THE RIGHT to free speech include the right to yell “Fire!” in a crowded social network?

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That’s one of the questions raised by the violent overreaction by some Muslims to the 14-minute YouTube video clip, Innocence of Muslims.

Of course, my question paraphrases the words of Supreme Court Justice Oliver Wendell Holmes in deciding that speech likely to cause immediate violence could be restricted. However, over the course of the 20th century, the American standard for limiting potentially harmful speech has gotten a lot tougher. For the past 50 years or so, it’s been settled law in the U.S. that the First Amendment protects speech that is, like Innocence of Muslims, false, hateful, malevolent, and even very badly written, acted, and produced. But the Internet Age is bringing new challenges to America’s free-speech fundamentalism.

Tolerance of blasphemous, racist, and defamatory material is commonplace to most Americans. We take it as one of our God-given rights. But, in fact, this is a real example of American exceptionalism. No other liberal democracy in the world protects speech that is plainly intended to wound and insult members of a specific racial or religious group. “Hate speech” prohibitions are the rule throughout the Western world.

The internet, however, is an American invention. It is dominated by American companies, and, when it comes to free speech, the internet plays by American rules (except maybe when it comes to China). We were reminded of this over the summer when a phalanx of Silicon Valley corporate bigwigs joined privacy and civil liberties advocates to promote an international “Declaration of Internet Freedom.” The declaration is a manifesto of general principles that opposes censorship, supports net neutrality, and includes the crucial principle (especially dear to the heart of Google-owned YouTube) that a service provider should never be held responsible for the actions of its users.

Meanwhile, also this past summer, a highly respected legal scholar, Jeremy Waldron, published The Harm in Hate Speech, a book presenting the argument that America should get with the rest of the world and reconsider our free market in bigoted ideas. The book has occasioned a serious debate. Retired Supreme Court Justice John Paul Stevens even took it on in The New York Review of Books. But in those exchanges no one, not even Waldron himself, seemed to seriously expect that American free-speech law will ever change.

But then came Innocence of Muslims. The absurd video seems to have been deliberately produced and publicized to provoke a blind rage among some Muslims. At the least, those involved showed reckless disregard for the possibility of violence. The best information available at this writing suggests that the film was produced by an Egyptian-American Coptic Christian living in California, Nakoula Basseley Nakoula. Another Copt in the Washington, D.C. area, Morris Sadek, then sent the video to Egyptian journalists and posted it on social media. Then the Quran-burning Florida preacher, Terry Jones, with whom Sadek claims association, showed the clip at his “International Judge Muhammad Day” event on Sept. 11. The rest is history.

This is the other side of internet freedom. Social media can be used to spark a democratic uprising, as happened in Egypt last year. But they can also allow a very few, extreme fringe characters to spread lies, provoke hatred, and walk away from the resulting bloodshed free and clear.

For Americans who know a little history, talk of restricting speech may turn our minds immediately to the Red Scare of the 1950s, when the range of acceptable political discussion in America was severely restricted by blacklists and censorship. That’s what we see at the bottom of censorship’s slippery slope. But maybe we’re just like the generals who keep preparing to fight the last war. Maybe it’s time to rethink our free-speech fundamentalism.

Danny Duncan Collum teaches writing at Kentucky State University in Frankfort. His latest book is the novel White Boy.

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